International Standards on Child Labor:
The ILO Cites a Surprising Offenderby Paul
Germanotta www.dissidentvoice.org
November 20, 2003First Published in
Foreign Policy in Focus

In
an unusual development, the Committee of Experts of the UN's International
Labor Organization (ILO) has found the United States Government to be in
violation of Convention 182. Convention 182, the newest "core" convention of
the ILO, calls for the prohibition and elimination of the "worst forms" of
child labor. The committee is an independent, quasi-judicial body that
supervises government compliance with ratified ILO conventions and compiles
its annual "comments" in a report published in March.

The U.S. Government
ratified Convention 182, its second ILO core convention, in December 1999.
It is only in ratifying a convention that a government triggers scrutiny of
its national law and practice under the ILO's regular system of supervision.

The convention defines
"child" as any person under the age of 18. It requires a ratifying
government to take "immediate and effective measures to secure the
prohibition and elimination of the worst forms of child labor as a matter of
urgency." The "worst forms" of child labor are defined to include hazardous
work. Under article 4, the list of the types of work a government determines
to be hazardous for children must be "periodically examined and revised as
necessary."

In its 2001 compliance
report to the ILO, its first under Convention 182, the Bush administration
cited the Fair Labor Standards Act of 1938 (FLSA) as one of its "primary
means of establishing," under article 3(d), the types of hazardous child
labor in the United States. It also referred to a study commissioned by the
Department of Labor (DOL) from the National Institute for Occupational
Safety and Health (NIOSH), an agency of the Department of Health and Human
Services, stating that the results would be used to at least partly meet its
obligation to periodically review and revise its list of the types of work
determined to be hazardous.

In keeping with the
convention, the FLSA bans employment in hazardous occupations and work
activities for persons under 18 years old. However, it runs afoul of the
convention, in part, with permissive rules that apply to child labor in
hazardous agricultural occupations, including a lower minimum age of 16.

In implementing the FLSA,
the Secretary of Labor has by regulation designated a list, now decades-old,
of hazardous work activities and occupations, grouped into 28 "Hazardous
Occupations Orders" (HOs), for which the use of child labor is banned.

In its May 2002 report
NIOSH not only "found justification for all of the existing HOs," but it
recommended that only seven of the twenty-eight HOs be left unchanged, and
that the other 75% be revised in order to expand the prohibitions or to
redefine them more broadly.

It also recommended the
development of several new HOs "to protect youth from especially hazardous
work not adequately addressed in the existing regulations." These would,
among other things, encompass work "associated with deaths and severe
injuries of youth, work with especially high fatality rates, and work
associated with disabling health conditions."

In a significant caveat,
NIOSH referred to the FLSA exemptions for agricultural work, noting that its
study "does not address statutory issues such as minimum age for work in HOs
and exemptions from the FLSA … Many deaths and serious injuries occur among
youth not covered by the FLSA."

The report states:
"Thirty-five percent of the young workers killed over the 1992-1997 period
lost their lives in agricultural production jobs … Youth 15 to 17 years of
age working in agriculture appeared to have over four times the risk for
fatal injury of youth workers in other industries … Changes to HOs could not
be expected to impact these young worker injury deaths since they are exempt
from the FLSA."

In 2001, two legislative
measures to amend the FLSA in order to toughen the regulation of child labor
in hazardous employment were introduced in the 107th Congress: the
Children's Act for Responsible Employment (the CARE Act) and the Young
American Workers' Bill of Rights Act. The bills, which stalled in committee,
would, among other things, increase from 16 to 18 the minimum age for
hazardous agricultural work.

In its observation, the ILO
Committee of Experts took note of the NIOSH report and made clear that a
determination of compliance with the convention would depend, in part, on
the government being able to report that "the Fair Labor Standards Act and
its implementing orders and regulations … will be amended in the light of
the Government's NIOSH … recommendations." It also noted "with interest" the
two congressional bills introduced in 2001, and it asked the government to
report in 2003 on "steps it has taken to promote [them] … with a view to
bringing about their enactment by Congress."

The U.S. Senate saw the
problem coming from the outset and qualified its 1999 ratification with an
"understanding" that, in its view, Convention 182 was not intended "to lead
to a change in the agricultural employment provisions or any other provision
of the Fair Labor Standards Act in the United States." Since reservations to
ILO conventions are inadmissible, however, the Senate's legal gimmick for
securing a politically cost-free ratification failed to fend off the
committee's scrutiny.

The Bush administration, it
seems, now intends to ignore the ILO’s determination of U.S. noncompliance
with the convention, while keeping it out of the public discourse.
Meanwhile, it will at most meet its obligation to report on the measures it
is supposed to be taking to remedy the nonconformities of U.S. law and
practice. This cynical strategy can be gleaned from a visit to the public
website of the DOL, where not a single reference to the committee’s
U.S.-directed comments appears.

Apart from the department's
politically filtered website content, a review of its policy track record
also makes apparent the intention to leave the Committee of Experts'
comments unacknowledged--and unheeded.

In an intra-agency memo
dated September 24, 2002 responding to internal recommendations on the
domestic child labor program made by the DOL inspector general's office (OIG),
the Wage and Hour Division administrator specifically backpedaled on the
NIOSH study. Her reply to the OIG recommendation to incorporate the NIOSH
recommendations was framed in distinctly noncommittal terms.

Indeed, the sole reference
to plans for regulatory action on hazardous domestic child labor in the
department's online budget and policy documents is contained in the section
of its Strategic Plan for FY 2003-2008 on Program Evaluation, as an entry in
a chart on how programs under the department's four strategic goals will be
evaluated. It states: "Evaluation of the NIOSH recommendations for
implementing new child labor hazardous occupations regulations: Wage and
Hour Division will review recommendations from stakeholders on updating the
regulatory child labor hazardous occupations orders."

The entry makes no mention
of the agricultural HOs or the FLSA exemptions for agricultural work. Nor
does the notation for the methodology to be used make any reference to the
NIOSH report or to the ILO comments under Convention 182, and it excludes
even the generic methodologies listed for other DOL program evaluations.
Instead, it designates as the sole methodology "Cost/benefit analysis"--a
euphemism for the chopping block.

The FLSA hazardous
occupations orders thus appear targeted, not for retention and expansion as
NIOSH recommends, but for streamlining with a view to elimination. They are
evidently among the intended casualties of the department's new strategic
goal of "A Competitive Workforce in the 21st Century," which has as a
central outcome goal "minimizing regulatory burdens that can impede the
productivity and competitiveness of the Nation's businesses."

In its blind, almost
frenzied preoccupation with promoting U.S. business interests, the Bush
administration appears intent on continuing to ride roughshod over
protections for U.S. workers under federal law. It now plans to do so in the
face of a formal, binding determination by well established, if
non-coercive, supervisory mechanisms of the ILO that those protections must
be reinforced, and that until the U.S. government takes steps in that
direction it cannot be deemed a responsible observer of its international
commitments under labor conventions it has ratified.

Paul
Germanotta works as a lawyer and union research consultant in Geneva.
He is a member of the international solidarity committee of the Syndicat
interprofessionnel de travailleuses et travailleurs, an independent general
workers' union in the Canton of Geneva. A longer version of this article
will be appearing in a forthcoming issue of WorkingUSA; this version first
appeared in Foreign Policy in Focus